Wills, Trusts & Estates Prof Blog

Attorney disbarred for lying to probate judge

The following behavior by a Texas attorney resulted in his disbarment.  Here are the details from Disciplinary Actions, 72 Tex. B.J. 884 (2009):

The 162nd Judicial District Court found that during a probate court hearing, [attorney] knowingly made a false statement of material fact to a tribunal concerning the residence of his client and, once it became clear the judge misunderstood [attorney's] statement, [he] did not correct the false statement. [He] subsequently filed a document with the probate court containing a false statement of what he told the judge at the hearing. [Attorney] knew or should have known that he might be a witness necessary to establish essential facts on behalf of his client relating to a will contest. Despite this knowledge, [he] failed to withdraw from representing the client. [Attorney] engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. [His] appeal deadline was June 8.

[He] violated Rules 3.03(a) and (b), 3.08(a), and 8.04(a)(1) and (a)(3). He was ordered to pay $10,732.70 in attorney’s fees and costs.

[Attorney] has filed an appeal.

Attorney disbarred for lying to probate judge

The following behavior by a Texas attorney resulted in his disbarment.  Here are the details from Disciplinary Actions, 72 Tex. B.J. 884 (2009):

The 162nd Judicial District Court found that during a probate court hearing, [attorney] knowingly made a false statement of material fact to a tribunal concerning the residence of his client and, once it became clear the judge misunderstood [attorney's] statement, [he] did not correct the false statement. [He] subsequently filed a document with the probate court containing a false statement of what he told the judge at the hearing. [Attorney] knew or should have known that he might be a witness necessary to establish essential facts on behalf of his client relating to a will contest. Despite this knowledge, [he] failed to withdraw from representing the client. [Attorney] engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. [His] appeal deadline was June 8.

[He] violated Rules 3.03(a) and (b), 3.08(a), and 8.04(a)(1) and (a)(3). He was ordered to pay $10,732.70 in attorney’s fees and costs.

[Attorney] has filed an appeal.

The Ethics of Representing Families When Creating Family Entities

Mary F. Radford (Professor of Law, Georgia State University College of Law) has published her article entitled Ethical Challenges in Representing Families in Family Limited Partnerships,  35 Am. C. of Trust & Estate Counsel J. 2 (Summer 2009).  The editor's synopsis of the article is below:

This article discusses the complicated lawyer-client representation issues raised when a family entity (such as a limited partnership or LLC) is created.  The article also addressed the issue, and material risks, associated with the multiple representation of the entity, the general partner(s) and the limited partner(s)-including when such multiple representation might not be expected or intended (at least by the lawyer).  Depending on state law, and the entity involved, some attorneys may be surprised to learn that the creation of the entity might force them in the future to withdraw from representing everyone in the family.

South Carolina: No Attorney Duty to Prospective Will Beneficiaries

The South Carolina Supreme Court recently held that an attorney does not owe a duty to a prospective beneficiary under a non-existent will and therefore, the prospective beneficiaries cannot sue the attorney for negligently failing to draft the will.  The plaintiffs in the case were prospective beneficiaries under a will that an attorney was supposed to draft, but failed to, before the testator became incapacitated and died intestate. The court distinguished the case from cases in other states where an attorney owes a duty to beneficiaries under an executed will and ruled that imposing a duty to prospective beneficiaries would "wreak havoc" on the attorney's ethical duty of undivided loyalty to the client.  Rydde v. Morris, No.  26619 (S.C. Mar. 23, 2009).

Special thanks to Michael Hatfield (Professor of Law, Texas Tech University) and Robert C. Peithman (attorney, South Carolina) for bringing this case to my attention.

 

Failure to draft will contributes to attorney's suspension from the practice of law

On January 29, 2009, an Austin lawyer was suspended from the practice of law for three years, with the first year to be actively served with the remaining two years probated.

Here is a description of her conduct as found in Disciplinary Actions, 72 Tex. B.J. 406, 407-08 (2009):

An evidentiary panel of the District 9-A Grievance Committee found that in a civil matter involving the drafting of a will, [she] failed to draft the will, failed to keep the client reasonably informed about the status of the case, failed to refund any unearned fee, and engaged in legal work while administratively suspended from the practice of law. The panel further found that in a bankruptcy matter, [she] engaged in legal work while administratively suspended from the practice of law.

The lawyer's duty towards retained estate planning documents

Jennifer A. Kosteva (Associate, McGuireWoods LLP, Richmond, Virginia) has recently posted her article entitled Where There's a Will, There's a . . . Duty?: A Closer Look at the Safekeeping of Clients' Original Estate Planning Documents.

Here is an excerpt from the article's introductin:

Before the ink has dried on their newly executed wills, clients often ask their attorneys and other advisors where they should store their original estate planning documents. A number of options are available, each with their own advantages and disadvantages. The options for storing original estate planning documents include in the client’s home safe, in the client’s safety deposit box at a bank, with the drafting lawyer, with the named fiduciary, with a trusted family member, friend, or advisor, or in some jurisdictions with respect to wills, with the clerk or registrar of the appropriate court. This article examines the duties of a lawyer who retains a client’s original estate planning documents for safekeeping. The article also considers safekeeping by a bank, trust company, or other financial institution serving as a fiduciary under a will or trust, or as an advisor to the client.

Texas lawyer suspended for actions in probate case

A Rockwall, Texas lawyer received a six-month, fully probated suspension from the practice of law for his actions in regard to a probate case.

Here are the details from Disciplinary Actions, 72 Tex. B.J. 216, 218 (2009):

On June 6, 2006, the complainant hired [attorney] to probate the estate of his son. During the course of the representation, [the attorney] failed to respond to the complainant’s requests for information regarding the case.

Texas lawyer disbarred for probate misconduct

The following is a description of the conduct which caused an Irving, Texas lawyer to be disbarred on June 2, 2008:

An evidentiary panel of the District 6A-B2 Grievance Committee found that [attorney's] great uncle executed a will naming [him] as independent executor. The will provided that the independent executor would serve without compensation. On Oct. 9, 2002, [the] great uncle died. Although he was administratively suspended, [attorney], as independent executor, hired himself as attorney to represent the estate. The employment agreement provided [that he] would be paid a legal fee of one-third the estate value for legal services rendered. As attorney for the independent executor, [he]neglected probate of the estate by failing to file an inventory and appraisement until a show cause order was issued. On [his] advice, the estate invested funds with another client of [attorney] that owed [attorney] attorney’s fees. On Aug. 1, 2006, [he] was removed as independent executor. The court found the fee charged by [him] as attorney was unconscionable and grossly excessive.

See Disciplinary Actions, 72 Tex. B.J. 216, 216 (2009).

Estate planning malpractice analyzed

Sharon B. Gardner (Partner, Crain Caton & James, Houston, Texas) has recently published her article entitled Project Runaway--One Day You're In As the Attorney and the Next Day You're Out!, 1 Est. Plan. & Comm. Prop. L.J. 111 (2008).

Here is an excerpt from the article's introduction:

This article traces the history of attorney liability in Texas as it relates to probate and trust lawyers.  After reviewing the general concepts of liability, this discussion will cover those claims unique to this area of practice.  This article will suggest ways to reduce potential liability in these often uncharted waters.  Also discussed is the viability of using arbitration agreements in fee arrangements in the context of legal representation.

The article further discusses a recent ethics opinion, requested from the State Bar of Texas by the author's law firm, regarding passing the cost of a legal malpractice claim defense to the underlying client in a way that is ethical when the claim is made by a third party.

Councilman accused of misuse of power of attorney and trust funds

Allegheny County Pennsylvania Councilman Charles P. McCullough has recently been charged with 23 criminal counts involving his alleged misapplication of trust property.

The following details are from Paula Reed Ward, County councilman charged, Post-Gazette, Feb. 20, 2009:

• Charles was elected in 2007.
• According to the grand jury presentment, Charles took over $154,000 from Shirley Jordan's trust.
• Shirley is a 91-year-old widow who resides in a nursing home.
• Charles, a lawyer, was her agent under a power of attorney and represented her with regard to the trust.
• Shirley claims that the $40,000 of political donations made with her money were not authorized.
• There is evidence that checks were altered and that another check was payable to a charity of which his wife was executive director.
• The power of attorney Shirley signed was "springing," that is, it did not give Charles authority under Shirley was incapacitated.  The grand jury determined that she was not incapacitated at the times in question.
• Although the power of attorney states that the agent (Charles) was to serve without compensation, the claim is being made that Charles took $4,000 per month as his fee.
• Evidence was also presented to the grand jury that Charles received excessive legal fees for his work.
• Charles's sister, Kathleen, was charged with a variety of theft offenses involving Shirley as well as a former employer from whom she is accused of stealing $1.25 million.

Probate lawyer disciplined

A Rockport, Texas lawyer recently received a two-year suspension (fully probated, believe it or not) from the practice of law for a variety of inappropriate acts which included her conduct in a probate action.  See Disciplinary Actions, 72 Tex. B.J. 136, at 140:

In a probate representation, [she] neglected the representation, failed to communicate with her client, failed to timely withdraw from representation, and failed to timely return the client’s file and property.

"No Time for Goodbye"

I have just finished reading an excellent novel by Linwood Barclay entitled No Time for Goodbye.

Here is the author's "teaser" about the book:

One night, when Cynthia Archer was 14 years old, her family disappeared. Now, 25 years later, she’s about to learn what happened to her mother, father, brother, and she might be better off never finding out.

According to Alafair Burke, “No Time For Goodbye is a deliciously smart thriller, full of surprises and perfect pacing. I'm jealous I didn't write it."  I completely agree.

BUT, what is not revealed in any teasers or reviews, is that this book has its foundations in wills, trusts, and estates!  In fact, the plot could not exist with our area of the law!  So as not to spoil the book for readers who have not yet experienced it, I have posted my discussion of the connection off-site here.

Probate lawyer behaving badly

A Houston lawyer recently received a six-month suspension from the practice of law for the following behavior:

[He] was retained to file an application for a guardianship in probate court. [He] did not return many of the client’s phone calls and generally failed to keep her properly informed about the matter. Richey promised the client a partial refund of his fee, but failed to follow through on that promise.

In the second matter, [he] was retained to file a Medicaid application and handle related issues. For a lengthy period, Richey did not respond to the client’s letters or otherwise communicate with the client.

Surprisingly, the suspension was fully probated!

See Disciplinary Actions, 71 Tex. B.J. 910, 912 (2008).

Judge moonlights as funeral director

A Nashville, Tennessee judge has received some bad press lately for his second job as a funeral director.

Here are some details from Judge Works Second Job While Courtroom Waits, NewsChannel5.com, Nov. 10, 2008:

• Judge Gale Robinson is the presiding judge of Davidson Count's General Sessions Courts.
• Judge Robinson's salary is approximately $150,000 per year.
• Judge Robinson moonlights as a funeral director for his family-owned business.
• Judge Robinson has been known to chastise attorneys for being late to court.
• However, some litigants have had to wait for Judge Robinson while he was attending to a funeral.

Negligent Estate Planner Placed on Probation

A Texas lawyer recently received a two-year suspension from the practice of law which was in a most lenient fashion fully probated.

Here is a description of her sloppy behavior as reported in Disciplinary Actions, 71 Tex. B.J. 766, 767 (2008):

A panel of the District 7-A Grievance Committee found that in September 2006, the complainant hired [Attorney] to prepare a living trust and a family limited partnership.  [Attorney] subsequently neglected the complainant’s legal matter by failing to complete the work on the living trust and by preparing and filing a certificate of limited partnership with incorrect provisions for the complainant’s grandchildren. [Attorney] subsequently failed to return several of the complainant’s phone calls and failed to keep him reasonably informed regarding the status of his case.

Joint representation in the estate planning context

John R. Price (Professor of Law Emeritus and Dean Emeritus, University of Washington School of Law) recently authored an article entitled In Honor of Professor John Gaubatz: The Fundamentals of Ethically Representing Multiple Clients in Estate Planning, 62 U. Miami L. Rev. 735 (2008).

Here is an excerpt from the article's introduction:

Joint representation in estate planning can occur in a variety of contexts other than the representation of husbands and wives, including the multigenerational representation of family members, the representation of multiple beneficiaries of a trust or estate, and the representation of multiple fiduciaries of a trust or estate. This article first gives consideration to the propriety of representing multiple clients in estate planning and to the various ways in which they might be represented. It also includes a discussion about the practicalities of representing multiple clients in estate planning and the impact of the recent changes in the form of the ABA Model Rules of Professional Responsibility (“Model Rules”) regarding confidentiality of client information and conflicts of interest. Emphasis is given to the importance of adequately informing clients about the consequences of a multiple representation and to the use of engagement letters. Although the article will generally focus on the Model Rules, a lawyer's ethical duties are, of course, governed by the rules of the jurisdiction in which the lawyer practices, which often differ from the Model Rules.

Evil Kentucky probate lawyer disbarred for life

The Supreme Court of Kentucky has recently agreed with the Kentucky Bar Association's recommendation to permanently disbar Richard Kip Cameron from the practice of law due to various ethical breaches including one including his service as a court-appointed conservator.

Cameron was appointed as the conservator of the Estate of Troy Perry and thereafter collected funds belonging to Perry.  Cameron was late in filing annual reports for two years and was later replaced.  The replacement conservator discovered that Cameron "double-charged the estate by charging both a Conservator fee and a private attorney fee, and misappropriated and converted to his own use money that belonged to Mr. Perry."  When a complaint was later filed, he did not respond which is deemed an admission of guilt.

Note that Cameron had been given a prior opportunity to remedy his conduct and receive a lighter punishment (suspension for 181 days with 60 days thereof probated).

See Kentucky Bar Association v. Cameron, 2008-SC-000316-KB (Sept. 24, 2008).

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this case to my attention.

Lawyer fakes brother's will

John Karoly, a well-known Allentown, Pennsylvania lawyer, was indicted yesterday (September 25, 2008) on charges he and two others conspired to defraud his brother's and sister-in-law's estates by creating fraudulent wills. 

John's brother (Peter Karoly) and sister-in-law (Lauren Angstadt) died in February of 2007 in a plane crash.  The couple had no children and each had estates worth many millions of dollars.  Authorities assert that John, upset that he was not included in their wills prepared in 1985, decided to collect from the estates by forging wills.

See Precious Petty, Attorney John Karoly indicted on charges he faked millionaire brother's will , LeighValley.com, Sept. 25, 2008.

Evil probate lawyer must wait for "Supreme Justice"

Earlier on this blog, I reported that Charles Barnes a probate lawyer in Duncan, Oklahoma, had been charged with embezzlement and forgery.  According to prosecutors, Barnes spent approximately $150,000 which belonged to one of his clients.  He was holding the funds for the family's estate but when the family tried to collect the funds, they had disappeared.  Barnes told investigators that he spent the money because he had financial troubles.  He then engaged in various activities to hide the embezzlement.

It has now been reported that Barnes has died from what investigators say appears to be a self-inflicted gunshot wound to the head.  See Martha Neil, Missing Okla. Lawyer Found Dead in Seeming Suicide, ABA Journal Law News Now, Sept. 24, 2008.

Thus, Barnes has escaped being held accountable for his actions but his victims may still have recourse against his estate, assuming there are assets which can be reached to satisfy their claims.  As for Barnes' punishment for his actions, we may never know whether he was able to get in the Pearly Gates or if he will be roasting for a while.

Special thanks to Deborah Letz (attorney, San Antonio, Texas) and for bringing this updated information to my attention.

Pennsylvania modernizes ethical rules for lawyers who act as fiduciaries

As Neil Hendershot of the PA Elder, Estate & Fiduciary Law Blog reports,

On September 4, 2008, the Pennsylvania Supreme Court issued an Order, with Annexed Rule Changes, amending Rule 221 of the Pennsylvania Rules of Disciplinary Enforcement, and also Rule 1.15 of the Pennsylvania Rules of Professional Conduct, regarding, respectively, "Funds of clients and third persons" and "Safekeeping property," as both affect lawyers acting as fiduciaries.

For a comprehensive discussion of these news rules, see Neil's discussion entitled PA Ethical Rules for Lawyers as Fiduciaries (Sept. 19, 2008).